Legal Newsline

Thursday, January 23, 2020

NLRB makes first call in firing over Facebook photo

By Stephanie Ostrowski | Oct 18, 2012


Lake Bluff, Ill. (Legal Newsline) - The firing of a BMW salesman for photos and comments posted to Facebook did not violate federal labor law, the National Labor Relations Board has found.

Seven days after an employee posted two photos that Knauz BMW said were potentially embarrassing to the luxury car dealership, the individual was fired.

The Board and Administrative Law Judge Joel P. Biblowitz had to decide which Facebook post the salesman was fired for.

In one photo, the salesman publicized an accident involving a Land Rover that was driven over a wall and into a pond by a customer's 13-year-old son with the caption, "OOPS."

The same day the employee mocked the business for serving hot dogs, chips and bottled water to promote a sales event for the new BMW model. The photo caption stated, "No, that's not champagne or wine, it's 8 oz. water."

The Board and Biblowitz agreed the salesman was fired solely for the photos he posted of the Land Rover accident and not the sarcastic remarks towards the free food and new car model promotion as the salesman maintained in a charge filed with the NLRB.

According to Biblowitz, the low-cost food photo was protected under the National Labor Relations Act because the salesmen involved were concerned with the image of distributing hot dog and chips to customers, the reflection of the dealership, and in turn, their sales and commissions.

Under this act, employees who are discussing or trying to improve their terms and conditions of employment are protected. Actions can be protected if they are undertaken on behalf of a group, but the Board and judge found that was not the case with the photo of the Land Rover in a pond.

As Biblowitz wrote, "It was posted solely by (the employee), apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees' terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting."

The Board ordered Knauz BMW to update their employee policy handbook accordingly. This ruling, dated Sept. 28, was made public Oct. 1 and is the first decision involving a discharge for a Facebook posting. Other similar cases are pending before the Board.

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